Mercer prosecutor won’t retry murder case

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The 1998 murder charge pending against Davie Hurt will be dismissed, Mercer County Prosecuting Attorney Scott Ash said Wednesday.

Last month, the West Virginia Supreme Court sided with a lower court’s ruling and vacated Hurt’s murder conviction. He spent 13 years in prison.

Hurt, now 35, was convicted of first-degree murder in 1998 and sentenced to life in prison for the 1995 robbery and shooting death of Fred Thomas Lester, a gas station attendant at Rich Oil, in Bluefield.

Hurt was released in 2011 after Circuit Judge Joseph Pomponio Jr. overturned his conviction on the grounds of ineffective counsel and an unreliable witness.

Ash said there isn’t enough evidence to go to trial. He said after the Supreme Court’s ruling, that he would review Hurt’s case and decide whether to retry him.

Ash said the murder charge would be dismissed without prejudice, meaning it could be brought again against Hurt if new evidence is discovered.

“The key witness has testified both ways — Davie Hurt was responsible and Davie Hurt was not responsible,” Ash said.

“I’ve been dealing with this for over half of my life,” Hurt said after finding out the prosecutor’s decision to drop the charge against him. “It feels like I’m 17 again and I actually get a chance to have a life.”

Lester’s family isn’t happy, Ash said. They couldn’t be reached on Wednesday by a Gazette reporter.

In their decision, justices wrote that Hurt probably would have been found innocent if not for the numerous errors committed by his attorney during trial.

In 1995, police arrested Hurt in connection to Lester’s slaying and robbery after another juvenile admitted shooting Lester in the back of the head and named Hurt as an accomplice.

Hurt has maintained that he was talking to his pregnant girlfriend at about 3 a.m. on Aug. 21, 1995, the time of Lester’s death. Justices wrote that his attorney never bothered to find evidence to corroborate Hurt’s alibi. That attorney also never contacted his girlfriend’s parents who could have testified their daughter was on the phone with Hurt.

At his first trial in Mercer County, jurors couldn’t reach a unanimous verdict. They were 10-2 in favor of his acquittal.

His lawyer at the time, Tracy Lusk, asked for the next trial to be moved elsewhere because of the publicity it generated. The West Virginia Supreme Court agreed, and chose Pocahontas County. Lusk was disbarred in 2002 over unrelated matters.

Hurt is black, the murder victim was white, and he was convicted by an all-white jury in Pocahontas County. The county has a black population of less than 1 percent, and is the seat of the National Alliance, a white-supremacist group, the Supreme Court noted in its decision.

Hurt’s lawyer at trial should have objected to the trial being held in Pocahontas County and should have asked if any of the jurors were members of the National Alliance or a similar organization, justices wrote.

The judge who overturned Hurt’s conviction also did so because the man who implicated him in the slaying and robbery was an unreliable witness.

Like Hurt, Michael Hopkins was 17 when he admitted to shooting Lester and named Hurt as an accomplice. Hopkins pleaded guilty to second-degree murder and, as part of his plea agreement, testified against Hurt in his two trials.

In 1999, though, Hopkins said Hurt had nothing to do with the crime. Hopkins signed two affidavits and wrote a letter to the judge who oversaw Hurt’s second trial, admitting that he lied about Hurt’s involvement. In one of his recantations, Hopkins said police gave him Hurt’s name.

The year before the robbery, Hurt and his family settled a lawsuit against the Bluefield Police Department that claimed police brutality toward Hurt and his cousin, who were 14 at the time. The same police officers involved in the lawsuit also were involved in the investigation of the robbery and slaying of Lester.

Hopkins was released on probation in the early 2000s, after 10 years in prison. During Hurt’s hearing in 2011, Hopkins again took the witness stand — and again changed his story. He said he had never given an affidavit or written letters to the judge — all of which is in the record. That caused the judge to find that he wasn’t a credible witness. The Supreme Court agreed.

Hurt said his attorneys called him Wednesday and told him to pull over if he was driving, before giving him the news. He was happy when the Supreme Court sided with him, but had been wondering for several weeks whether he’d have to face another trial.

“When I was in prison, I had this therapist … she used to say, “Davie, you’re in denial, you need to relax, accept your situation and just prepare to spend the rest of your life here,’” Hurt recalled. “When I didn’t accept it they gave me Paxil, said, ‘put him on Zoloft, we’ll have to calm him down.’ There was no calming me down.”

Hurt now lives in Sacramento, California. He comes from a religious family, but for some time, had lost his faith.

“I had always believed that the truth will set you free and then that didn’t happen,” he said, speaking through tears. “This is like the first time in my life that I don’t have this hanging over my head.”